1. ' This appeal under section 11 of Criminal Law Amendment Act, 1944 is directed against the order passed by District and Sessions Judge, Karachi, on 5th February 1974.
2. ' The relevant facts are that the appellant No, 1 was the Manager of the National Bank of Pakistan in the Defence Society Branch during the period 1964 and 1969. The appellant No, 2 is his wife. The services of the appellant were applauded till 1967, but in 1969 upon an audit having been made, information was discovered which lead to discovery of alleged defalcation, fraud and misappropriation on the part of the appellant No, 1 and it was alleged that he had defrauded the National Bank of sum of Rs, 9,00,000 between a period 1967 to 1969. The criminal prosecution was lodged against the appellant No, 1 on 7-10-1969 and on 7-2-1972 an application under section 3 of Criminal Law Amendment Ordinance, 1944, which would hereinafter be referred to as the said Ordinance, was filed in the Court of the District Judge, Karachi for attaching 3 properties of appellant Fakir Muhammad Malik (1) House No, B/11/B Defence Society Valued at Rs, 1,05,000 standing in the name of Mrs. Maqooda Malik wife of Fakir Muhammad (2) House No, 1/MAC/598- 837 at Mahmoodabad Karachi standing in the name of Mr. Fakir Muhommad Malik valued at Rs, 2,800(3) Opel car 1963 Model valued at Rs, 10,000. The main ground of the said application was that the above said properties had been acquired by appellant No, 1 by means of the offence and further that the house in Defence Society had been procured by the appellant No, 1 in the name of his wife who is Benamidar. On the same day an interim application under section 4 of the said Ordinance for attachment of the said properties was also made upon which an order was passed by District Judge on 18-3-1972 to the following effect :- "By consent of the defence counsel property Nos, 2 and 3 in the schedule is put under interim attachment. As regards property No, 1 in the schedule evidence to be led by both the parties whether it was procured by means of an offence. Hearing 1-4-1972."
3. ' Before proceeding further I may take note of the sanction order dated 9th December 1971, issued by Central Government under section 3 of the said Ordinance for sanctioning the filing of application for attachment of property of Fakir Muhammad Malik whether standing in his own name or in the name of his wife which was believed to have been procured by means of the offences. It is an admitted position that this sanction under section 3 by Central Government is necessary for filing attachment application in respect of the property of the person against whom the acts of corruption are alleged. Without such sanction no application for attachment could have been filed.
4. ' The two appellants filed their counter affidavit before learned District Judge, where they alleged that House in Defence Society had been made by the appellant No, 2 in 1965, and therefore it could have no connection with the funds obtained from the alleged offence. In respect of house of Mahmoodabad it was claimed that it was purchased in October 1964, and hence it was purchased before the alleged offence. It was further asserted that the opel car has been purchased out of sum of Rs, 10,000 sanctioned by the National Bank of Pakistan for the purchase of car on 15-4-1968, and therefore, it could have no concern with the funds obtained on account of the alleged offences. The parties proceeded to trial..
5. ' The applicant Bank examined' Mirza Liaquat who just stated that in his opinion the house in Defence Society had been constructed with the defrauded amount. He did not make any statement about either the car or house at Mahmoodabad. But in cross-examination he admitted that the house at Mahmoodabad was purchased by Fakir Muhammad -from Rooshan Ali on 30- 10-1964 for a sum of Rs, 2,800. In respect of house in Defence Society he did not know whether the property was purchased by appellant No, 2 and the loan had been obtained from the National Bank of Pakistan by registering a mortgage deed in their favour on 28-3-1965. He later admitted however that it was registered in the name of Mst. Maqsooda Malik appellant No, 2 on 11-6-1965. He was not in a position to state whether on reconstructing of the accounts an excess of several lakhs had been found. He was not aware whether challan in the criminal case had been submitted or not. To the last question he could not answer whether the properties were secured in 1964 and 1965, before embezzlement by appellant No, 1 started in 1966-67. The appendix to Exh. 7 produced by this witness shows that the embezzlement, if any, started from 18-8-1967 and not earlier. Exh. 8 dated 15-4-1978 shows that a loan of Rs, 10,000 was sanction in favour of the appellant No, 1 for purchase of car. The exact deed of purchase of the car is not on this record and this car was purchased evidently at a time which was during the period when the offence is alleged to have taken place.
6. There is a lease agreement. Exh. 10 produced by defence and put this winess Liaquat in cross- examination showing that on 3rd December 1965. Appellant No, 2 had leased the House No, B/11/Bin Defence Society in favour of Csechoslovak Embassy. Exh. 11 produced by this witness is the copy of the plaint in Suit No, 327/71 filed by National Bank of Pakistan against the two appellants wherein it is mentioned that the two appellants had taken a loan of Rs, 70,000 from National Bank of Pakistan on 24-7-1965 and appellant No, 2 had executed a mortgage-deed of plot of Defence Society in favour of National Bank of Pakistan on 23-8-1965. The said mortgage-deed is also produced along with the said plaint and the schedule of the said mortgage-deed shows that Plot No, B/11/B measuring 1500 sq. Yards in Defence Society was mortgaged by Mst. Maqsooda Malik appellant No, 2 in favour of National Bunk of Pakistan who is surety for re-payment of loan of Rs, 70,000 granted by National Bank of Pakistan to appellant No,
1. Exh. 12 also shows that the transfer of the Defence Society plot in favour of appellant No, 2 took place on 11-6-1965. The appellant No, 1 examined himself as a Defence witness and he also produced the power of attorney whereby his wife appellant No, 2 had authorised him to act as his attorney. It appears that the National Bank of Pakistan has filed suit against the appellants for recovery of Rs, 36,000 out of the outstanding amount of the loan of Rs, 70,000 advanced to him in 1965. The house in the Defence Society has admittedly been attached by the High Court in respect of the suit. The National Bank has also filed Suit No, 676/71 against the appellant No, 1 in respect of the loan for car of Rs, 10,000 and the same has been decreed.
7. ' The learned District and Sessions Judge by his order dated 5-2-1974 has confirmed the attachment in respect of Mahmoodabad house and the opel car which had been made on 18- 34972 with the consent of the counsel, The house in the Defence Society was also attached under section 4 of the said Ordinance by the order of 5-2-1974.
8. ' It is quite apparent to me that the alleged defalcation or embezzlement by the appellant No, 1, if any, has started from 18th of August 1967, and not earlier, and therefore any property acquired by him either in his own name or in the name of his wife could not be said to have been acquired out of the funds procured on the basis of the offences as the house at Mahmoodabad was admittedly purchased in October, 1964, for Rs, 2,800 and house in Defence, Society was constructed in 1965 out the loan of Rs, 72,000 obtained from National Bank of Pakistan in 1965 and an advance rent of Rs, 36,000 obtained from Czechosolovak Embassy in 1965. These are the properties having been purchased in 1965 or earlier, and hence they could have no connection with the funds obtained out of the alleged offences which started from 18-8-1967. Since the whole basis of the application under sections 3 and 4 was the purchase of these properties out of the funds obtained from the offences and particularly the sanctioned of the Central Government referred to the properties having been purchased out of funds obtained from the offences. Therefore, there was no justification to attach these properties merely as the basis that they either belong to the appellants or were held by Mst. Maqsooda Malik as a Benamidar. I am also of the view that the expression of a mere opinion by Liaquat that in his opinion the house at Defence Society belonged to the appellant No, 1 was not sufficient to establish that she was Benamidar of the said house. The burden in such cases is on the person who alleges a particular transaction to be Benami and that burden had not been sufficiently discharged by P. W. Mirza Liaquat, as admittedly the plot stood in the name of the appellant No,
2. I am therefore of the view that the decision could not be based merely on the factum of ownership of the house at Mahmoodabad by appellant No, 1, and the ownership of the house at Defence Society by appellant No, 2 as a Benamidar of appellant No, 1 as the application and the sanction was not on the basis of ownership atone but was on the basis of that the funds had been procured out of the offences alleged which had not been proved. I have come to the conclusion that the two houses at Defence Society and Mahmoodabad were not purchased or procured out of the alleged offence, and therefore, the attachment on that basis is hereby set aside. This order would however not debar the prosecution from proceeding against the said property on any other basis. Mr. Rasheed Akhtar, learned counsel for the State has fairly conceded that the interim attachment having been made on 18-3-1972 and having been not confirmed within 3 months came to an end on 18-64972, and therefore could not be confirmed in 1974. He was also of the view that no interim order having been passed in respect of the house at defence Society on 18-3-1972 have no order could be passed in respect of the same on 5-2-1974. However, in view of my above order it was not necessary to note these submissions. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.